Ever since she was in the seventh grade, 15 year old Enidris Siurano-Rodríguez of Montgomery County has chosen to sit quietly each morning while her classmates have stood and pledged allegiance to the flag. Earlier this year, one teacher told her that she had to stand. When she refused, she was taken to the principal’s office where she was asked (not too nicely) to explain why she refused to stand for the Pledge of Allegiance, according to an article in a major Puerto Rican newspaper. Ms. Siurano-Rodríguez – Puerto Rican born but living in Maryland since she was three years old – is protesting what she believes to be an “antidemocratic” political situation between the Caribbean island and the United States.

While it’s unclear whether there have been actual disciplinary measures taken against her by school officials, Ms. Siurano-Rodríguez has been told that she might be separated from the class during the Pledge of Allegiance if she refuses to participate. Can a public school do this? Are school officials legally permitted to hinder a student from quietly protesting just because it might be deemed unpatriotic? LASIS investigates.

For those of you who aren’t up on your Caribbean geopolitics: Puerto Rico is home to about four million Spanish-speaking people. The residents of the island became U.S. Citizens in 1917 (via the Jones Act) and were later granted the ability to form the Commonwealth government that exists today. While the island is self-governing, Congress still retains the power to veto any laws passed by the Puerto Rican legislature and the U.S. Constitution reigns as the supreme law of the land. The debate about whether Puerto Rico is just a dressed-up modern-day colony is as heated as ever and even the White House recently backed the idea of holding another plebiscite on the issue.

Back to the matter stateside: The law regarding the right to protest in the specific context of a school is pretty clear and has been since 1969 when the Supreme Court decided the case of Tinker v. Des Moines Independent Community School District. In this case, a number of students were disciplined for wearing black armbands to school protesting the Vietnam War. Because the Court reasoned that one does not “shed” the constitutional right of free speech “at the schoolhouse gate” the students could continue their protest. Tinker established the “substantial disruption” test that protects student protests on school grounds unless the protest is substantially and materially disruptive of the regular functions of the school. A 1986 Supreme Court case, Bethel School District v. Fraser, affirmed the decision in Tinker but limited protected protests in schools to speech that is not “lewd” or “vulgar”.

Different circuits around the country have defined exactly what this means over the years. A 2011 4th U.S. Circuit Court of Appeals case noted that mere “discomfort” or “unpleasantness” was not enough to be considered a substantial disruption. Sounds like this might be Ms. Siurano-Rodríguez’s case.

While Ms. Siurano-Rodríguez has probably not been formally disciplined yet, she has certainly been embarrassed. But, being embarrassed at school is probably not enough to get her into federal courts.

Luckily for her, Maryland has state law on the issue.

The Maryland statutes that regulate public schools have a provision requiring that the Pledge of Allegiance be recited in every classroom and by every teacher and student. There is an exception, however. Any teacher or student “who wished to be excused… shall be excused.” This exception is the product of litigation in Maryland as well as other neighboring states about the constitutionality of a law requiring everyone to pledge allegiance without exception.

And as it turns out, Ms. Siurano-Rodríguez’s county’s school system has internal regulations that go beyond Maryland’s statute in protecting a student’s right not only to not participate in “patriotic exercises” but also to be free of “embarrassment for failure to participate.”

So, it seems that this student not only has the right to protest in her school (as long as she’s not disturbing anyone) but she probably also has a good case against school officials within her state. The ACLU agrees and is backing her (and a number of other students across the country). While the original article I read about this case says that Ms. Siurano-Rodríguez and the ACLU decided to sue, they have both denied this claim elsewhere. Instead, they’ve sent school officials a letter asking for an official apology and for none of this to appear in the student’s disciplinary record.

Ms. Siurano-Rodríguez has faced criticism for living here, benefiting from the American way of life and education, and viewing Puerto Rico as her country.

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Legal As She Is Spoke is an online project of the Program in Law and Journalism at New York Law School. Our site reports on the state of legal journalism and encourages conversation about the accuracy and felicity of reporting on law. For an explanation of our name, click here.

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Last year, LASIS reporter Halina Schiffman-Shilo wrote about her experiences with the UN from Arusha, Tanzania. She's back in the urban jungle now, and is examining human rights abuses here at home, by district attorneys against innocent defendants. Enter, the Guilty Prosecutor.